CAAFlog » Court-Martial News

Sergeant Bergdahl remains in the news, with this New York Times report on his interview with Major General Kenneth R. Dahl, who was appointed to investigate Sergeant Bergdahl’s capture by the Taliban. Stars and Stripes has this version of the story from the Associated Press. And the Military Times reports here that:

A July 15-17 unscientific poll by Military Times asked readers what the military should do with Bergdahl now that he has finished his Amy-led reintegration process. Of the more than 4,400 people who responded, 60 percent selected the “court-martial him” option.

Here’s a link to an interesting story out of the Army involving a Private First Class Chestnut:

Chestnut, 25 and openly gay, was found guilty by a military jury June 24 of one specification of sexual assault and found not guilty of one specification of assault consummated by a battery against another male soldier during his time at Fort Sam Houston. He was sentenced July 2 to three years in prison, reduction in rank to private and a dishonorable discharge.

During the sentencing phase of the court-martial last month, the judge in the case, Col. Gregory Gross, said he would recommend to the convening authority to overturn the guilty findings.

The Marine Corps Times reports here on a series of military justice related questions put to General Dunford during his confirmation hearings on his nomination to be the 36th Commandant of the Marine Corps.

And this report from says that the DoD completed a report required by section 652 of the FY14 NDAA, concluding that it is “inappropriate” to provide additional transitional benefits to the dependents of service members punitively separated by a court-martial (i.e., who lose retirement benefits because of a conviction). I haven’t been able to find the actual DoD report.

In case you missed the news this weekend, the DoD IG has cleared the Commandant of the Marine Corps of wrongdoing in the Marine Corps’ urination cases.  Reports here (Marine Corps Times) and here (WaPo).  Strange result in a stranger case.  The Marine Corps has no current plans to release the investigation, but it is unclear if they are considering it or asking the DoD IG to do so–though the Marine Corps seemingly had no problem immediately confirming details about actions against the whistleblower in this case, see e.g.  here.

For those that yearn for human interest military justice stories, from The Oklahoman, “Free on the Plains,” a story of Michael Behenna’s life since his release from the USDB.

In the justice delayed category we have this report from Marine Corps Times about unresolved alleged miclsconduct by the Marine Corps head of the Joint Non-Lethal Weapons Directorate in Quantico, Va. Apparently this misconduct came to light in March 2013 and resulted in Col. Tracy Tafolla’s removal as commander of the directorate. But no action has been taken since that time. The actions fall into the gray area between sexual harassment and sexual assault. But if Colonel Taffola was Staff Sergeant Taffola, I think the chances are high there would already be preferred charges. Whether that’s the right result or not is a different question and one you can’t answer without more facts.  Update:  A commenter noted that at the end of the article the Marine Corps spokesman stated that NJP proceedings are not released to the public (which is actually not true, the services release that info when it suits their needs): “It’s possible, though, that he will receive nonjudicial punishment as a result of the accusations, or that he has already accepted an NJP. Runyon said that because NJP proceedings are not open to the public, he could not release any information about that process.”  So justice may not be delayed as NJP may have been imposed.  So there you go, maybe justice has not been delayed and this O-6 has received NJP for this conduct.

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.


From Stars and Stripes, here:

The Army has issued a formal reprimand for misconduct to its former top sex-crimes prosecutor after investigating a complaint that he kissed and groped a female officer while attending a conference on sexual-assault prevention, according to Army officials.

Lt. Col. Joseph “Jay” Morse received the reprimand in late June, officials said, four months after the Army received the complaint and suspended him from his job as supervisor of the Army’s special-victim prosecutors.

Morse has apparently notified the Army that he plans to retire.  Can things get any worse on this front . . . did I actually type that?  H/t JG

Much coverage of Sergeant Bowe Bergdahl’s retention of former NIMJ President Eugene Fidell, here (NBC), here (ABC), and here (Fox). Bergdahl is reportedly working a desk job at Ft. Sam Houston in San Antonio after finishing reintegration training for former POWs.

Bergdahl matter will have a two-star investigating officer, see DoD press release here and Army Times coverage here.  The statements says:

The Army has initiated its investigation into the facts and circumstances surrounding the disappearance and capture of Sgt. Bowe R. Bergdahl from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan on or about June 30, 2009. The Army has appointed as the investigating officer Maj. Gen. Kenneth R. Dahl, an Army officer with Afghanistan combat experience.

In related news, General Martins, former chief prosecutor for the military commissions told reporters that the five detainees traded for SGT Bergdahl could not have been prosecuted by the tribunals at Gitmo, Miami Herald coverage here.

On the Hill, Rep. John Kline introduced a bill to expand sexual assault victims services to reservists, Congressman’s website post here and here (The Hill).  The expanded services would make victim advocates available to reservists regardless of when, where or by whom they were sexually assaulted.  And the Senate also recently referred to the Veterans committee a bill that the House recently passed, HR 2527. The bill to provide counseling and other services to servicemembers that suffered sexual trauma during inactive duty or training, The Hill coverage here.

Continued testimony in the shadowy FBI investigation that led them to question Gitmo detainee defense team support staff members without disclosing the investigation to defense counsel.  Miami Herald coverage here.

As tipsters and commenters have been reporting, Marine Corps Times, here, is running a story that says the prosecutor that oversaw the NCIS raid of Marine Corps defense offices at Camp Pendleton was removed from his job (prior coverage here and here).  It also notes that at least one and possibly other Marine Corps’ trial judges ruled that the “search on defense offices, instigated and overseen by the prosecution, constituted apparent unlawful command influence . . . .” The story includes pictures of the defense counsel office raid at Camp Pendleton  and this piece of information as well:

The attorneys prosecuting on behalf of the U.S. government called for the May 2 search with the intent of unearthing a cell phone containing evidence in the case of Marine Sgt. Rigo Betancourt, accused of drug-related crimes. The defense team on the case provided text messages from the phone to prosecuting attorneys, but refused to turn over the phone itself without a judicial order. The prosecutors then obtained the equivalent of a search warrant from Col. Tracy King, then-commander of Combat Logistics Regiment 15 and the designated area commander. In the ensuing two-and-a-half-hour armed search, investigators unearthed the phone in question within minutes, but continued to scour the remaining office spaces, where material for many other active cases was kept.

The story alerts us that Marine Corps trial judge Lt. Col. Chris Thielemann also recently issued a veiled reprimand of defense counsel for their response to the raid:

Thielemann’s ruling in the Miramontes case also contained a veiled reprimand for senior Marine defense attorney Lt. Col. Clay Plummer, who denounced the office search to The Associated Press shortly after it took place, calling it “unacceptable” and “crazy.” The judge recommended that a decision be made on whether Plummer’s comments violated a rule prohibiting “extra-tribunal statements,” and said a ruling on the ethical propriety of any of the defense attorneys’ actions should be made by the court’s Rules Counsel or the judge presiding over the Betancourt case.

I’ve read the JAG Corps’ PR Instruction and I would say Judge Thielemann is unnecessarily recommending a referral to Rules Counsel.  With regard to statements in response to information in the public domain through the actions of others:

Notwithstanding paragraphs a and b(l) through (7), a covered attorney may make a statement that a reasonable covered attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the covered attorney or the attorney’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

JAGINST 5803.1D, Rule 3.6(d).  Not knowing all the facts, in fact knowing only a tiny sliver of them, I can’t say there was or was not a violation.  But, particularly in light of the UCI ruling(s), what defense counsel seemed to be doing was attempting to mitigate the effects of the publicity about the raid.  Prior coverage of the ABA’s statement on the raid, and attorney-client privilege issues, here.

The suspect in the stabbing at Naval Medical Center Portsmouth is being handed over to Navy authorities after fleeing the base before the base was locked down reports WAVY TV 10 here. Another suspect who may have helped the PO3 Harwell escape is being questionned.

I don’t even know what to say about the USCGA’s decision not to prosecute a cadet at court-martial for entering a fellow cadets room while drunk and touching her on the leg, report here. The accused cadet said he went into the wrong room thinking it was his girlfriend’s room.

WaPo reports here that SGT Bowe Bergdahl was previously separated from the Coast Guard with an uncharacterized discharge and also gives us a glimpse of his thoughts about deploying from his journals.  Will this push him closer to court-martial?

Prior coverage of the Taliban prisoner exchange and potential UA/desertion charges here.

That’s the story in this report from McClatchy’s Michael Doyle:

For two days in a Washington Navy Yard courtroom, [Navy CDR Paul Walker] oversaw a hearing to determine whether there’s probable cause to think that Hospitalman Kevin McCormick Jr. sexually assaulted the sailor following a night of drinking and dancing. McClatchy’s policy is to not name alleged victims of sexual assault.

McCormick’s case is both typical and extraordinary.

What’s typical is the role of alcohol and the he-said-she-said conflict over events. The accuser says she was raped after she’d blacked out. McCormick says the sex was consensual.

What’s extraordinary is the still-open Naval Criminal Investigative Service probe into claims that the accuser tried to extort $1,000 from McCormick in exchange for her silence.

“I do know there’s a possibility that I could be charged,” the accuser testified Tuesday, “and there’s a possibility that I could not be charged.”

At the end of the report you’ll find the following additional details:

Awakening the next morning amid bloody bedsheets, the woman said she’d concluded that she’d been raped. In subsequent conversations with McCormick, who went to NCIS investigators after tape-recording their first call, the woman sought money.

“I’m going to say you raped me, if you don’t comply,” the woman said, according to one tape played at the hearing, adding, “The real question is, how much does your naval career mean to you?”

After having been gone for so long, I thought I would drop in to start a little $%*#-storm by posting this piece from Reuters which notes that Secretary of the Army John McHugh released a statement, here, which makes no mention that the Army has plans to court-martial Sgt. Bowe Bergdahl.  Of course, Bergdahl was recently returned to US forces from Taliban/Al Queada custody in a prisoner swap of sorts, see prior coverage here (NYT, May 31) and here (WSJ, today).  But, as many media outlets have covered, see e.g. WaPo here, Bergdahl allegedly walked off his post in Afghanistan before being captured by insurgents.  Commence comment $%*#-storm.

Stripes reports, here, that a military judge has dismissed charges against Air Force Chief Master Sgt. Roy A. Bowser Jr.  The government reportedly twice failed to disclose evidence that might be categorized as Brady v. Maryland, see United States v. Mahoney, 58 MJ 346 (C.A.A.F. 2003), and was likely required to be disclosed under R.C.M. 701, because it reportedly would have challenged the credibility of the victim in the case.

In this post on May 2, Phil broke the story of a prosecution-driven search of the Camp Pendleton Branch Office of the Marine Corps Defense Services Organization. The search was reportedly authorized by the cognizant installation commander, and reportedly sought a cell phone alleged to be in the possession of an accused’s military defense counsel.

Seven days later, in this post on May 9, Sam noted that the media was on to the story.

Last week, in this post on May 22, Phil provided us an update with details from a report by Associated Press writer Julie Watson that was reprinted in the Marine Corps Times. However, the Marine Corps Times version omitted part of Ms Watson’s report. As reported on the AP’s site:

Prosecutor, Maj. Doug Hatch, told the judge that the prosecution ordered the search as a last resort after the defense refused to hand over the phone.

“They were looking for one thing and one thing only,” he said. “They were not trying to seek out any other evidence.”

But the search didn’t stop with one phone or one office. Rather, as reported by Ms Watson:

Military investigators said they were looking for a cellphone in a separate case involving drug use and gang activity. Investigators testified Thursday that they continued to search all of the defense attorneys’ offices even after locating the cellphone in a desk drawer because the lawyers would not verify that it was in fact the correct phone.

Sadly, it seems that no new information about the search has been released to the public. However, today the President of the American Bar Association released a statement on “Attorney-client privilege and government surveillance”:

The American Bar Association recently met with National Security Agency General Counsel Rajesh De to discuss current government procedures for protecting the attorney-client privileged status of material obtained through government surveillance. We also discussed how those procedures may be further strengthened.

The ABA emphasized that the attorney-client privilege is essential to the fairness of our justice system and the independence of the legal profession. The privilege protects the confidential lawyer-client relationship and allows clients, whether they are businesses seeking regulatory guidance or criminal defendants facing loss of liberty, to candidly communicate with lawyers and receive effective counsel. The assurances received were encouraging, particularly that procedures are in place to minimize the acquisition, retention and dissemination of information related to U.S. persons, including any potentially privileged information.

This only begs questions such as: What (if any) procedures are in place to minimize the acquisition, retention and dissemination of privileged attorney-client communications when military prosecutors orchestrate a search of military defense counsel workspaces? Further, what safeguards exist to protect innumerable other attorney-client communication mediums that are routinely monitored (such as government computers that explicitly warn of monitoring at every log-in) from prosecution quests for evidence? Additionally, do commanders balance the need to protect the existence (never mind the public image) of the attorney-client privilege in the military against prosecution-driven search requests?

Finally, Ms Watson reports that Major Hatch told the military judge that this was a last resort. Was there really no other way?

Notably, Ms Watson’s report alludes to what’s at stake:

The findings of the May 2 search were revealed Thursday during a motions hearing for Lance Cpl. Eric Salinas, a defendant in a hazing case who wants to sever his relationship with his Camp Pendleton lawyers because of the search. He told the judge he wants to be represented by attorneys outside the base.

His defense lawyers went one step further and asked the judge to throw out the charges against him if he cannot get a fair trial because of the raid.